Surash Kumar Davani vs Shashikant Agarwal and Others

Bhawani Singh, C.J.—This appeal is directed against the award of Motor Accident Claims Tribunal, Jabalpur in M.V.C. No. 94 of 2000 dated 30.1.2001.

Compensation of Rs. 33,41,350/- has been claimed for suffering personal injuries in the accident which took place on 12.8.1998 when vehicle No. MP-J 1812, owned by Shashikant Agrawal, driven by Shivbalak Patel and insured with Oriental Insurance Co. Ltd., hit the claimant who was going on bicycle, on the crossing of Ghamapur, in the evening at 8 p.m. It is stated that the accident was result of rash and negligent driving of the truck by its driver as a result claimant suffered grievous injuries to head and chest and fracture to feet and hand. The matter was reported to police, claimant was shifted to Victoria Hospital, Jabalpur, and thereafter, Jabalpur Hospital. He used to do the painting work before the accident and after the accident he is unable to do it. He spent considerable amount on treatment. Respondents state that the accident took place due to failure of brakes. Vehicle was insured, therefore, the Insurance Company is liable to pay the compensation. The Insurance Company admits that vehicle was insured with it but disputes the facts stated in the claim case.

The Claims Tribunal after recording of the evidence and hearing the parties, holds that accident took place, as alleged. The claimant suffered partial disablement. The claimant was earning Rs. 1,500/- per month, therefore, awarded compensation of Rs. 1,20,000/- (Rupees one lakh twenty thousand) with interest at the rate of 10 percent per annum from the date of application. Through this appeal, the claimant has challenged the award.

It is contended by Mr. Subodh Kothar, the learned Counsel for the appellant that the Claims Tribunal has not assessed the compensation properly. The income of the claimant has not been considered properly for determination of compensation nor proper multiplier has been used. For medical treatment, proper compensation has not been awarded nor there is adequate compensation towards pain and suffering and disability. No compensation has been awarded for transport, attendant facility nor there is adequate compensation for future treatment which the claimant has to undertake. Learned Counsel for appellant placed reliance on Apex Court decision rendered in the case of Grifan Vs. Sarbjeet Singh and Others, , in which award of Rs. 2,00,000/- (Rupees two lakhs), was enhanced to Rs. 4,00,000/- (Rupees four lakhs) in a case of 80 percent disability, overall being 50 percent disability and income of claimant Rs. 4,000/-per month.

Giving consideration to the whole matter, we find that the claimant suffered fracture of femur bone in right leg for which he had to be operated and nailing and plating were resorted to. According to Dr. Ravi Choudhary, A.W. 3, the disability is 85 percent similar is the statement of Dr. Abhay Shrivastava, A.W. 4, therefore, it can be held that the claimant had suffered permanent disability of 85 percent and conclusions of Claims Tribunal that it is a case of partial disability, is not sustainable. It is found that the cause of accident was the rash and negligent driving of the vehicle by the driver, otherwise it would not have taken place.

Next question is determination of compensation for the injuries described above, the claimant sought treatment at Victoria Hospital and Jabalpur Hospital for some time. During the treatment, nailing and plating had to be done to the injuries in question, therefore, claimant must have undergone great pain and suffering. He has spent considerable amount on treatment. As per Exh. P-8, Rs. 1,37,540/- (Rupees one lakh thirty-seven thousand five hundred and forty) is spent (Exhs. P-9 to P-140). Obviously, he must have spent on transport and attendant facility. It is stated that after the accident, his right hand has become non-functional, therefore, he cannot do painting work. Treatment to the leg has been done but serious limping as such, he has to lie in bed most of the time. Therefore, he suffered loss of income after the accident to considerable extent, with regard to the income, it is stated that claimant was earning Rs. 5,000/- per month. Although there is evidence to show that his father and another brother were also working in the same shop, though the claimant alleges that his father does not work due to old age and disability.

Consequently, in the totality of circumstances, we are of the considered view that just and proper compensation has not been awarded to the claimant in this case. Accordingly, the appeal is allowed, award is modified.

Following compensation is awarded to the claimant:

(1) For disability and loss of income, Rs. 2,00,000/- (Rupees two lakhs).

(2) For pain and suffering Rs. 50,000/- (Rupees fifty thousand).

(3) For medical expenses including future expenses, Rs. 1,50,000/- (Rupees one lakh fifty thousand).

(4) For special diet, Rs. 10,000/- (Rupees ten thousand).

(5) For attendant, Rs. 10,000/- (Rupees ten thousand).

Therefore, the claimant is awarded compensation of Rs. 4,20,000/- (Rupees four lakhs twenty thousand only). The amount enhanced will carry interest at the rate of 9 percent per annum from the date of application till the payment.

Costs on this appeal be borne by the parties.